Robinson, P. J.
Appellee recovered a judgment for rebuilding a fence along appellant’s right of way, which abuts on his farm. The statute (§5323 Burns 1901, Acts 1885, p. 224) requires railroad companies, within twelve months after the taking effect of the act as to completed roads, and within twelve months from the completion of roads thereafter built, to fence their right of way, when it shall be done, the kind of fence to be made, and that they shall thereafter maintain such fence. The next section (5324 Bums 1901) provides that when the company fails to' build the fence, as required by the above section, the abutting landowner may, upon notice, build it, and recover from the company the *565costs, with attorney’s fees. Section 5325 Burns 1901 requires the company to keep such fence in good repair, and sufficient to answer the purposes for which constructed, and upon failure, after thirty days’ notice, to make or commence such repairs, the abutting landowner may make them, and recover from the company the cost, with attorney’s fees.
1. On March 1, 1903, appellee gave appellant written notice that the fence was “out of repair, and wholly unfit to turn cattle, horses, hogs, sheep or other stock.” After the expiration of thirty days, appellant not having repaired or commenced to repair the fence, appellee restored it to the condition required by the statute, made out and furnished' appellant a statement of the expense as required by the statute, and, more than sixty days thereafter, the expense not having been paid, brought this action.
Each of the two paragraphs of complaint states that the road had been built more than a year before the date of the notice, that the right of way had been fenced, and that for a long time prior to the 'Tth day of March, 1903, appellant had permitted the fence to be and remain out of repair and unfit to turn horses, cattle, hogs, sheep and other animals'. That is, each paragraph recognizes that §5323, supra, had, at some prior time, been complied with, and a fence built, which had become, and had been permitted to remain, out of repair. The notice was given, and properly so, under §5325, supra.
2. As appellee could not proceed under §5324, supra, but necessarily under §5325, supra, it is not material that the proof showed that he rebuilt the fence out of new material, instead of repairing an old fence. It was appellant’s duty to maintain such a fence as the statute designated, and, having failed to do so, and having failed to restore the fence after fiotice that it was out of repair, and unfit to turn stock, as required by the statute, appellee was authorized to go upon the right of way and make such a fence as the statute makes it the duty of appellant to maintain. Ap*566pellee had the right to restore the fence that had previously been built in compliance with §5323, supra, and in doing so he might, under §5325, supra, repair a part, and rebuild' such part as could not be repaired, or, if incapable of being repaired because of decay or otherwise, he might rebuild the whole of it from new material.
3. A part of the fifth instruction to the jury should not have been given, but, upon the evidence, all of which was offered by appellee and was undisputed, it is clear that the verdict was right, and that the jury was not misled. As the error did not in any way affect the substantial rights of appellant (§401 Burns 1901, §398 R. S. 1881), and as it clearly appears that the merits of the cause have been fairly tried and determined in the court below (§670 Burns 1901, §657 R. S. 1881), we are required to affirm the judgment.
Judgment affirmed.